Treaty rules, customary norms, general principles, and subsidiary sources of interna- tional law related to the protection of the environment can be located in the special- ized box of international environmental law (‘IEL’). The protection of the environment touches on a myriad of areas because there is little to no action that does not have an effect, to one degree or another, on some aspect of the environment.78 Furthermore, ‘[e] nvironmental problems present a moving target’ because ‘not only does scientific understanding develop, [but] environmental problems themselves change as human behaviour and technology change’.79 The broad, all- encompassing, transitory, scientifi- cally uncertain, long- lasting, and potentially irreversible nature of environmental prob- lems requires IEL to continue to adapt, adopt, and create tools to meet the needs of the environment and humanity.
While there may be a box for IEL, this area of international law can by no means be seen in isolation from other areas of international law. It would be foolish to try to sepa- rate it from areas like international trade and development, international human rights, and international humanitarian law, to name but a few interconnected fields. Economic
72 Bassiouni (n 8) 777. 73 ibid. 777 (citing JL Brierly, The Law of Nations (6d 1963) at 63). 74 Raz (n 15) 841. 75 Bassiouni (n 8) 778. 76 Furundžija (n 62).
77 ibid. [182], [184].
78 Jaye Ellis and Stepan Wood, ‘International Environmental Law’ in Benjamin J Richardson and Stepan Wood (eds.), Environmental Law for Sustainability (Portland, OR: Hart Publishing, 2006) 343, 380; Daniel Bodansky, Jutta Brunnée, and Ellen Hey, ‘International Environmental Law: Mapping the Field’ in Daniel Bodansky, Jutta Brunnée, and Ellen Hey (eds.), The Oxford Handbook of International Environmental Law (Oxford: Oxford University Press, 2007) 1, 6.
development based on the trade of natural resources or even the manufacture of prod- ucts in factories affects the environment. The environment and human health cannot be separated and numerous, if not all, human rights depend on a healthy, sustainable environment if they are to be realized. In armed conflict, the environment is present during all military operations, even in instances where there may be no civilians pre- sent. Therefore, it is not only the environment that is omnipresent, but also environ- mental considerations within international law.
The legal tools of IEL include both binding treaties80 and non- binding declarations and resolutions.81 Tools of IEL include instruments produced by states82 as well as those produced by experts.83 IEL, however, lacks ‘an integrated UN special agency that could serve as an “umbrella organization” for coordinating environmental policies, integrat- ing legislation, and monitoring implementation’.84 Given this lack of umbrella organi- zation, Dupuy suggests that ‘general customary rules and general principles may act, in part at least, as compensation for the institutional deficiencies of the system’.85 General principles can, and do, operate across these imagined boundaries between specialized areas of international law with or without an umbrella organization. Principles of IEL include the principle of preventive action, cooperation, sustainable development, inter- generational equity, the precautionary principle, the polluter- pays principle, and the principle of common but differentiated responsibility.86
In 2013, the topic of ‘Protection of the environment in relation to armed conflict’ was added to the work of the ILC. The Commission appointed Marie Jacobsson as Special Rapporteur. The principles of sustainable development, prevention, precaution, pol- luter pays, and due diligence, were noted and discussed by the Special Rapporteur in her Preliminary Report to the Committee in 2014.87 These principles were discussed as ‘candidates for continuing application during armed conflict’, however, the ‘extent to which they may be applicable [was] not addressed’.88 Debate on the Second Report of 80 See, for example, Convention on Biological Diversity (Biodiversity Convention), 6 May 1992, 1760 UNTS 79; 31 ILM 818.
81 See, for example, Rio Declaration on Environment and Development, (A/ CONF.151/ 26, Vol. I), 12 August 1992.
82 These include binding treaties, as well as many non- binding instruments such as the Rio Declaration, ibid.
83 For example, reports put out by the experts groups of the United Nations Environment Programme (‘UNEP’) or produced by the International Law Association (‘ILA’) or International Law Commission (‘ILC’).
84 Pierre- Marie Dupuy, ‘Formation of Customary International Law and General Principles’ in Bodansky, Brunnée, and Hey (n 78) 463. Note: the UNEP does not fulfil this role primarily because it is a UN pro- gramme with limited legal personality and controlled by the UN General Assembly, as opposed to a UN agency which are autonomous intergovernmental agencies created through an independent legal instru- ment. For further discussion on the differences between UN agencies and UN programmes see UNEP, ‘United Nations Specialised Agencies versus United Nations Programmes’, 7 June 2010, at < https:// www. scribd.com/ document/ 212017488/ UN- Specialised- Agencies- vs- UN- Programmes.> accessed 31 May 2017.
85 UNEP (n 84) ibid.
86 See Philippe Sands and Jacqueline Peel, with Adriana Fabra and Ruth MacKenzie (eds.), Principles of International Environmental Law (Cambridge: Cambridge University Press, 3rd edn, 2012), 200– 36.
87 Marie G. Jacobsson, Special Rapporteur, Preliminary Report on the Protection of the Environment in Relation to Armed Conflicts, ILC Doc. A/ CN.4/ 674 (30 May 2014) paras. 125– 56 (‘ILC Preliminary Report’).
the Special Rapporteur in 2015, prompted suggestions from some ILC members who ‘stressed the need to methodically examine rules and principles of international envi- ronmental law to consider their continued applicability during armed conflict and their relationship with that legal regime’.89 These suggestions were positively received by the Special Rapporteur who was in full agreement and stated, ‘that the question of what other rules may apply during an armed conflict, including rules and principles of inter- national environmental law; was at the core of the topic. . . .’90 Such an examination is (as of early 2017) still a work in progress. A draft principle provisionally accepted by the ILC in 2015 notes that the ‘environment shall be respected and protected in accordance with applicable international law and, in particular, the law of armed conflict’.91This further supports the consideration of principles of IEL, as ‘applicable international law’, in the context of environmental protection in the application of IHL.
I now turn to a more in- depth examination of two general principles associated with IEL— intergenerational equity and the precautionary principle— with interpretive, gap- filling, developmental powers which should be applied across all fields of international law, in particular IHL.
4.4.1 Intergenerational equity
The first general principle I examine is the principle of intergenerational equity, also known as the Future Generations principle. This principle focuses on the need of each generation to preserve the planet’s natural and cultural heritage for future generations, balancing present needs with the responsibility to pass on the planet to subsequent generations in as good, or better, condition as it was received from prior generations.92 At the core of the concept is a strong temporal element with the idea that ‘our actions today pose long- term risks to the health of our planet and to our cultural resource base for which the present generation will be unable to compensate future generations’.93 Actors must consider both short- and long- term consequences of their actions within the context of protection of both natural and cultural environments. The rights of cur- rent generations must be exercised in a manner that will ensure they pass on to sub- sequent generations a world whose cultural and natural environment is in as good, or better, condition as when they themselves received it from preceding generations.94 As both beneficiaries, from prior generations, and trustees, on behalf of future genera- tions, of these environments we, the current generation, must examine our actions in light of their immediate effects as well as how these actions will affect these resources over time and spanning generations.
89 Report of the International Law Commission on the work of its sixty- seventh session, 4 May– 5 June and 7 July– 7 August 2015, A/ 70/ 10, 2015, chap. IX, paras. 130– 70, para. 141 (‘Report of the ILC 2015’).
90 ibid. para. 165. 91 ibid. 105 fn 378, Draft principle II- 1 (1).
92 Edith Brown Weiss, In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity (Dobbs Ferry, NY: Transnational Publishers Inc, 1989).
93 ibid. 5.
94 Edith Brown Weiss, ‘Intergenerational Equity: A Legal Framework For Global Environmental Change’ in Edith Brown Weiss (ed.), Environmental Change and International Law: New Challenges and Dimensions (Tokyo: United Nations University Press, 1992).
4.4.2 The history and evolution of intergenerational equity
Having established a basic understanding of the meaning and content of the concept of intergenerational equity, I turn to the history of the principle in IEL. Quite interest- ingly, ‘there is no society that has not, in some way, applied the principle of current gen- erations being responsible to future generations’ in some form or another.95 As Edith Brown Weiss notes, the concept of intergenerational equity, with the ‘fundamental the- sis that we have obligations to conserve the planet for future generations and rights to have access to its benefits’, can be found in the ‘diverse legal traditions of the interna- tional community’.96 Intergenerational equity can be found in ‘the common law and civil law traditions, in Islamic law, in African customary law, and in Asian nontheistic traditions’.97 These broad roots are useful in efforts to promote and strengthen the con- cept in modern international law.
The principle of intergenerational equity first appeared in international treaty law in the 1946 International Whaling Convention98 and it has appeared with increasing frequency since that time. References to intergenerational equity can be seen in a wide range of conventions addressing everything from the protection of flora and fauna;99 to natural resources;100 to the environment more generally.101
The 1987 Brundtland Report, issued by the United Nations and written by the World Commission on Environment and Development (‘WCED’), notably developed the idea of sustainable development, stating ‘Humanity has the ability to make development sus- tainable to ensure that it meets the needs of the present without compromising the ability of future generations to meet their own needs.’102 Crucially, the report places intergener- ational equity at the epicentre of how it defines sustainable development and the key to ongoing environmental protection. While sustainable development has become more nuanced since 1987, intergenerational equity remains one of its key components.103
The principle of intergenerational equity has also appeared in cases and advisory opinions of the ICJ. One such instance is the ICJ’s Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons 104 in 1996. In its opinion, the ICJ noted that, ‘the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn’.105
The increasing reliance and use of intergenerational equity in international law since 1946 demonstrates an increased awareness about human impact on the environment not only for current generations but also for continuing impacts on future generations.
95 Edward W Ploman, ‘Foreword’ in Weiss (n 92) xxvii. 96 Weiss (n 92) 18. 97 ibid. 98 International Protocol for the Regulation of Whaling, 2 December 1946, 161 UNTS 72, 62 Stat 1716, Can TS 1946 No 54.
99 Convention on International Trade in Endangered Species of Wild Fauna and Flora, 3 March 1973, 993 UNTS 243, 12 ILM 1085 (CITES), preamble.
100 1985 Agreement on the Conservation of Nature and Natural Resources (ASEAN Convention), 9 July 1985, at ECOLEX <http:// www.ecolex.org> accessed 31 May 2017, preamble.
101 1977 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD), adopted by the UN General Assembly, Res 31/ 72, 10 December 1976.
102 World Commission on Environment and Development, Our Common Future [Brundtland report] (Oxford: Oxford University Press, 1987), 8 (emphasis added).
103 See Sands et al. (n 86) 206– 17. 104 Nuclear Weapons (n 2) 226 at para. 78. 105 ibid. (emphasis added).
4.4.3 The current legal status of intergenerational equity
While the growth of the presence of, and reliance on, intergenerational equity in international environmental law suggests an ongoing strengthening of its status in international law, it is unlikely that it has achieved customary law status. As Judge Weeramantry notes in his dissenting opinion in the ICJ’s 1995 Nuclear Tests Case Order, intergenerational equity is ‘an important and rapidly developing principle of contem- porary environmental law’.106 The more recent work of Sébastien Jodoin and Yolanda Saito suggests that the status continues along the lines noted by Judge Weeramantry, as they write that, while not customary international law, intergenerational equity ‘undoubtedly forms an important value and concern of the international commu- nity’.107 The inclusion of intergenerational equity in the preambles of so many inter- national conventions is important because it provides an overarching objective or guide for the substantive obligations to be carried out under those conventions. As such, it appears that intergenerational equity is a strongly established principle of international environmental law.
The principle of intergenerational equity may have arisen in the field of environ- mental law, but it has the potential to inform other areas of law such as international human rights law and humanitarian law. The benefits and importance of considering the long- term effects and repercussions of decisions made in the present are mani- fold. It is not merely useful when dealing with the protection and preservation of our planet’s natural and cultural heritage, but it is also beneficial for other aspects of our well- being, such as health, education, and development. Employing intergenerational equity to guide the interpretation and application IHL is critical to ensuring that deci- sions made in the heat of battle do not inhibit long- term goals of sustainable peace and reconstruction, the effects of which matter intensely not only in the present, but for future generations.